What Power the People and Parliament Have

Lex Rex [Law Is King, or The Law & The Prince] (1644)

Samuel Rutherford

QUESTION 21What Power the People and States of Parliament Have over the King, and in the State

It is true the king is the head of the kingdom; but the states of the kingdom are as the temples of the head, and so, as essentially parts of the head as the king is the crown of the head.1

Assert. 1.  These ordines regni, the states, have been in famous nations: so there were fathers of families, and princes of tribes amongst the Jews: the Ephori amongst the Lacedemonians, (Polyb. hist. l. 6;) the senate amongst the Romans; the forum superbiense amongst the Arragonians; the parliaments in Scotland, England, France, Spain. Abner communed with the elders of Israel to bring the king home; (2 Sam. 3:17;) and there were elders in Israel, both in the time of the judges, and in the time of the kings, who did not only give advice and counsel to the judges and kings, but also were judges no less than the kings and judges, which I shall make good by these places: Deut. 21:19, the rebellious son is brought to the elders of the city, who had power of life and death, and caused to stone him; Deut. 22:18, “The elders of the city shall take that man and chastise him;” Josh. 20:4, but beside the elders of every city, there were the elders of Israel and the princes, who had also judicial power of life and death, as the judges and king had; Josh. 22:30, even when Joshua was judge in Israel, the princes of the congregation and heads of the thousands of Israel did judicially cognosce whether the children of Reuben, of Gad, and of half the tribe of Manasseh, were apostates from God, and the religion of Israel; 2 Sam. 5:3, all the elders of Israel made David king at Hebron; and Num. 12, they are appointed by God not to be the advisers only and helpers of Moses; but (ver. 14-17) to bear a part of the burden of ruling and governing the people, that Moses might be eased. Jeremiah is accused, (26:10,} upon his life, before the princes; Josh. 7:4, the princes sit in judgment with Joshua; Josh. 9:15, Joshua and the princes of the congregation sware to the Gibeonites that they would not kill them.

The princes of the house of Israel could not be rebuked for oppression in judgment (Mic. 3:1-3) if they had not had power of judgment. So (Zeph. 3:3; Deut. 1:17; 2 Chron. 19:6-7) they are expressly made judges in the place of God; and (1 Sam. 8:2) without advice or knowledge of Samuel, the supreme judge, they convene and ask a king; and without any head or superior, when there is no king, they convene a parliament, and made David king at Hebron; and when David is banished, they convene to bring him home again; when tyrannous Athalia reigns, they convene and make Joash king, and that without any king; and (Josh. 22) there is a parliament convened, and, for any thing we can read, without Joshua, to take cognizance of a new altar. It had been good that the parliaments both of Scotland and of England had convened, though the king had not indicted and summoned a parliament, without the king, to take order with the wicked clergy, who had made many idolatrous altars; and the P. Prelate should have brought an argument to prove it unlawful, in foro Dei, to set up the tables and conventions in our kingdom, when the prelates were bringing in the grossest idolatry into the church  a service for adoring of altars, of bread, the work of the hand of the baker  a god more corruptible than any god of silver and gold.

And against Achab’s will and mind, (1 Kings 18:19,) Elias causes to kill the priests of Baal, according to God’s express law. It is true it was extraordinary; but no otherwise extraordinary than it is at this day. When the supreme magistrate will not execute the judgment of the Lord, those who made him supreme magistrate, under God, who have, under God, sovereign liberty to dispose of crowns and kingdoms, are to execute the judgment of the Lord, when wicked men make the law of God of none effect. 1 Sam. 15:32, so Samuel killed Agag, whom the Lord expressly commanded to be killed, because Saul disobeyed the voice of the Lord. I deny not but there is necessity of a clear warrant that the magistrate neglect his duty, either in not convening the states, or not executing the judgment of the Lord. I see not how the convening of a parliament is extraordinary to the states; for none has power ordinary when the king is dead, or when he is distracted, or captive in another land, to convene the estates and parliament, but they only; and in their defect, by the law of nature, the people may convene. But, if they be essentially judges no less than the king, as I have demonstrated to the impartial reader, in the former chapter, I conceive, though the state make a positive law, for order’s cause, that the king ordinarily convene parliaments; yet, if we dispute the matter in the court of conscience, the estates have intrinsically (because they are the estates, and essentially judges of the land) ordinary power to convene themselves. Because, when Moses, by God’s rule, has appointed seventy men to be catholic judges in the land, Moses, upon his sole pleasure and will, has not power to restrain them in the exercise of judgment given them of God; for, as God has given to any one judge power to judge righteous judgment, though the king command the contrary, so has he given to him power to sit down in the gate, or the bench, when and where the necessity of the oppressed people calls for it.

For the express commandment of God, which says to all judges, execute judgment in the morning, involves essentially a precept to all the physical actions, without which it is impossible to execute judgment;  as, namely, if, by a divine precept, the judge must execute judgment; therefore he must come to some public place, and he must cause party and witnesses come before him, and he must consider, cognosce, examine, in the place of judgment, things, persons, circumstances: and so God, who commands positive acts of judging, commands the judge’s locomotive power, and his natural actions of compelling, by the sword, the parties to come before him, even as Christ, who commands his servants to preach, commands that the preacher and the people go to church, and that he stand or sit in a place where all may hear, and that he give himself to reading and meditating before he come to preach. And if God command one judge to come to the place of judgment, so does he command seventy, and so all estates to convene in the place of judgment. It is objected, “That the estates are not judges, ordinary and habitually, but only judges at some certain occasions, when the king, for cogent and weighty causes, calls them, and calls them not to judge, but to give him advice and counsel how to judge.”

Arg. 1.  They are no less judges habitually than the king, when the common affairs of the whole kingdom necessitates these public watchmen to come together; for even the king judges not actually, but upon occasion. This is to beg the question, to say that the estates are not judges but when the king calls them at such and such occasions; for the elders, princes, and heads of families and tribes, were judges ordinary, because they made the king,

Arg. 2.  The kingdom, by God, yea, and church, justice and religion, so far as they concern the whole kingdom, are committed not to the keeping of the king only, but to all the judges, elders, and princes of the land: and they are rebuked as evening wolves, lions, oppressors, (Ezek. 22:27; Zec. 3:3; Isa. 3:14, 15; Mic. 3:1-3,) when they oppress the people in judgment, so are they (Deut. 1:15-17; 2 Chron. 19:6-7) made judges, and therefore they are no more to be restrained not to convene by the king’s power, (which is in this accumulative and auxiliary, not privative,) than they can be restrained in judgment, and in pronouncing such a sentence, as the king pleased, and not such a sentence; because, as they are to answer to God for unjust sentences, so also for no just sentences, and for not convening to judge, when religion and justice, which are fallen in the streets, calls for them.

Arg. 3.  As God in a law of nature has given to every man the keeping and self-preservation of himself and of his brother, Cain ought in his place to be the keeper of Abel his brother; so has God committed the keeping of the commonwealth, by a positive law, not to the king alone, because that is impossible.2 (Num. 11:14, 17; 2 Chron. 19:1-6; 1 Chron. 27.)

Arg. 4.  If the king had such a power as king, and so from God, he should have power to break up the meeting of all courts of parliament, secret councils, and all inferior judicatures; and when the congregation of gods, as Psal. 82, in the midst of which the Lord stands, were about to pronounce just judgment for the oppressed and poor, they might be hindered by the king; and so they should be as just as the king makes them, and might pervert judgment, and take away the righteousness of the righteous from him, (Isa. 5:23,) because the king commands; and the cause of the poor should not come before the judge, when the king so commands. And shall it excuse the estates, to say, we could not judge the cause of the poor, nor crush the priests of Baal, and the idolatrous mass-prelates, because the king forbade us? So might the king break up the meeting of the lords of session, when they were to decern that Naboth’s vineyard should be restored to him, and hinder the states to repress tyranny; and this were as much as if the states should say, We made this man our king, and with our good-will we agree he shall be a tyrant. For if God gave it to him as a king, we are to consent that he enjoy it.

Arg 5.  If Barclay and other flatterers have leave to make the parliament but counselors and advisers of the king, and the king to be the only and sole judge, the king is, by that same reason, the sole judge, in relation to all judges; the contrary whereof is clear. (Num. 11:16; Deut. 1:15-17; Chron. 19:6; Rom, 13:1-2; 1 Pet. 2:13-14.) Yea, but (say they) the king, when he sends an ambassador, he may tie him to a written commission; and in so far as he exceeds that, he is not an ambassador; and clear it is, that all inferior judges (1 Pet. 2:13-14) are but sent by the king; therefore, they are so judges as they are but messengers, and are to adhere to the royal pleasure of the prince that sent them.

Ans. (1.)  The ambassador is not to accept an unjust ambassage, that fights with the law of nature. (2.) The ambassador and the judge differ, the ambassador is the king and states’ deputy, both in his call to the ambassy, and also in the matter of the ambassy; for which cause he is not to transgress what is given to him in writ as a rule; but the inferior judges, and the high court of parliament, though they were the king’s deputies, (as the parliament is in no sort his deputy, but he their deputy royal) yet it is only in respect of their call, not in respect of the matter of their commission, for the king may send the judge to judge in general according to the law, justice, and religion, but he cannot depute the sentence, and command the conscience of the judge to pronounce such a sentence, not such. The inferior judge in the act of judging is as independent, and his conscience as immediately subject to God as the king; therefore, the king owes to every sentence his approbative suffrage as king, but not either his directive suffrage, or his imperative suffrage of absolute pleasure.

Arg. 6.  If the king should sell his country, and bring in a foreign army, the estates are to convene, to take course for the safety of the kingdom.

Arg. 7.  If David exhort the princes of Israel to help king Solomon in governing the kingdom, and in building the temple (2 Chron. 32:3):  if Hezekiah took counsel with his princes, and his mighty men in the matter of holding off the Assyrians, who were to invade the land: if David (1 Chron. 13:1-4) consult with the captains of thousands and hundreds, to bring the ark of God to Kirjath-jearim: if Solomon (1 Kings 8:1) “assemble the elders of Israel, and all the heads of the tribes, and the chief of the fathers, to bring the ark of the tabernacle to the congregation of the Lord:” if Achab gathered together the states of Israel, in a matter that nearly concerned religion: if the elders and people (1 Kings 20:8) counsel and decree that king Achab should hearken to Ben-hadad king of Syria, and if Ahasuerus make no decrees, but with consent of his princes, (Esth. 1:21,) nor Darius any act without his nobles and princes: if Hamor and Shechem (Gen. 34:20} would not make a covenant with Jacob’s sons, without the consent of the men of the city, and Ephron the Hittite would not sell Abraham a burial place in his land without the consent of the children of Heth (Gen. 23:10):  then must the estates have a power of judging with the king or prince in matters of religion, justice, and government, which concern the whole kingdom. But the former is true by the records of Scripture; therefore, so is the latter.

Arg. 8.  The men of Ephraim complain that Jephthah had gone to war against the children of Ammon without them, and hence rose war between the men of Ephraim and the men of Gilead, (Judges 12:1-3,) and the men of Israel fiercely contended with the men of Judah, because they brought king David home again without them, pleading that they were therein despised, (2. Sam. 19:41-43,) which evinces that the whole states have hand in matters of public government, that concern all the kingdom; and when there is no king, (Judg. 20) the chief of the people, and of all the tribes, go out in battle against the children of Benjamin.

Arg. 9.  Those who make the king, and so have power to unmake him in the case of tyranny, must be above the king in power of government; but the elders and princes made both David and Saul kings.

Arg. 10.  There is not any who say that the princes and people, (1 Sam. 14) did not right in rescuing innocent Jonathan from death, against the king’s will and his law.

Arg. 11.  The special ground of royalists is, to make the king the absolute supreme, giving all life and power to the parliament and states, and of mere grace convening them. So says Ferne, the author of Ossorianum, (p. 69,) but this ground is false, because the king’s power is fiduciary, and put in his hand upon trust, and must be ministerial, and borrowed from those who out him in trust, and so his power must be less, and derived from the parliament. But the parliament has no power in trust from the king, because the time was when the man who is the king had no power, and the parliament had the same power that they now have; and now, when the king has received power from them, they have the whole power that they had before  that is, to make laws; and resigned no power to the king, but to execute laws; and his convening of them is an act of royal duty, which he owes to the parliament by virtue of his office, and is not an act of grace; for an act of grace is an act of free will; and what the king does of free will, he may not do; and so he may never convene a parliament. But, when David, Solomon, Asa, Hezekiah, Jehoshaphat, Ahaz, convened parliaments, they convened parliaments as kings, and so ex debito et virtute officii, out of debt and royal obligation, and if the king as the king, be lex animata, a breathing and living law, the king, as king, must do by obligation of law what he does as king, and not from spontaneous and arbitrary grace. If the Scripture holds forth to us a king in Israel, and two princes and elders who made the king, and had power of life and death, as we have seen; then is there in Israel monarchy tempered with aristocracy; and if there were elders and rulers in every city, as the Scripture says, here was also aristocracy and democracy; and for the warrant of the power of the estates, I appeal to jurists, and to approved authors: Arg. l. aliud. 160, sect. 1; De Jur. Reg. l. 22; Mortuo de fidei. l. 11, 14, ad Mum. l. 3, 1, 4; Sigenius De Rep. Judaeor. l. 6, c. 7; Cornelius Bertramo, c.
12, Junius Brutus, Vindic. contra. Tyran. sect. 2; Author Libelli de jur Magistrat. in subd. q. 6; Althus. Politic. c. 18; Calvin Institut. l. 4, c. 20; Pareus Coment. in Rom. 13; Pet. Martyr in Lib. Judic. c. 3; Joan Marianus de rege lib. 1, c. 7; Hottoman de jure Antiq. Regni Gallici l. 1, c. 12; Buchanan de jure Regni apud Scotos.

Obj.  The king after a more noble way represents the people than the estates does; for the princes and commissioners of parliament have all their power from the people, and the people’s power is concentrated in the king.

Ans.  The estates taken collectively do represent the people both in respect of office, and of persons, because they stand judges for them; for many represent many, ratione numeri et officii, better than one does. The king does improperly represent the people, though the power for actual execution of laws be more in the king, yet a legislative power is more in the estates. Neither will it follow, that if the estates of a kingdom do any thing but counsel a king, they most then command him, for a legal and judicial advice has influence in the effect to make it a law, not on the king’s will, to cause him give the being of a law to that, which without his will is no law, for this supposes that he is only judge.

Obj.  What power the people reserves, they reserve it to themselves in unitate, as united in a parliament; and therefore what they do out of a parliament is tumultuous.

Ans.  I deny the consequence; they reserve the power of self-preservation out of a parliament, and a power of convening in parliament for that effect, that they may by common counsel defend themselves.